EXHIBIT 1.1
EXECUTION COPY
PAGEMART WIRELESS, INC.
PLACEMENT AGREEMENT
January 22, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PAGEMART WIRELESS, INC., a Delaware corporation (the "Company")
proposes to issue and sell to you (the "Placement Agent") $432,000,000
principal amount at maturity ($249,700,320 initial Accreted Value) of 11 1/4%
Senior Subordinated Discount Notes due 2008 (the "Notes"). The Notes will be
issued pursuant to the provisions of an Indenture dated as of January 28, 1998
(the "Indenture") between the Company and United States Trust Company of New
York, as trustee (the "Trustee").
Simultaneously with the offering, the Company will consummate a
refinancing of certain of its outstanding indebtedness and a modification of
its corporate structure (the "Refinancing"). The Refinancing consists of the
following: (i) the purchase of all 12 1/4% Senior Discount Notes due 2003
(the "12 1/4% Notes") of PageMart, Inc. ("PageMart") tendered to PageMart in
its tender offer (the "Tender Offer") for all outstanding 12 1/4% Notes and
the elimination of most of the covenants and agreements in the indenture
relating to the 12 1/4% Notes (the "12 1/4% Indenture"); (ii) the amendment of
the terms of certain of the covenants and agreements in the indenture (the
"Original 15% Indenture") relating to the Company's 15% Senior Discount
Exchange Notes due 2005 (the "15% Notes") (the Original 15% Indenture as
amended, the "15% Indenture"); and (iii) the merger of PageMart with and into
the Company pursuant to a Certificate of Ownership and Merger (the "Merger
Certificate") between PageMart and the Company and as a result of which the
Company will be the surviving corporation (the "Merger"). The Merger is
conditioned upon the receipt of the consent and approval of the Merger by the
Federal Communications Commission (the "FCC").
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration
provided by Rule 144A under the Securities Act, in offshore transactions in
reliance on Regulation S under the Securities Act ("Regulation S") and to
institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that deliver a letter in the form annexed to the
Final Memorandum (as defined below).
In connection with the sale of the Notes, the Company has prepared
a preliminary offering memorandum (the "Preliminary Memorandum") and will
prepare a final offering memorandum (the "Final Memorandum" and, with the
Preliminary Memorandum, each a "Memorandum") setting forth or including a
description of the terms of the Notes, the terms of the offering, a
description of the Company and any material developments relating to the
Company occurring after the date of the most recent financial statements
included therein. As used herein, the term "Memorandum" shall include in each
case the documents incorporated by reference therein. The terms "supplement",
"amendment" and "amend" as used herein with respect to a Memorandum shall
include all documents deemed to be incorporated by reference in the
Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The purchasers of the Notes and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights
Agreement, to be dated as of the Closing Date and to be substantially in the
form attached hereto as Exhibit A (the "Registration Rights Agreement"),
pursuant to which the Company will file one or more registration statements
with the Commission registering with the Commission the Notes or the Exchange
Notes referred to (and as defined) in such Registration Rights Agreement.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you that as of the date hereof:
(a) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in either Memorandum
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) the Preliminary Memorandum does not contain and the
Final Memorandum, in the form used by the Placement Agent to confirm
sales and on the Closing Date, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 1(a) do not apply to statements or omissions in
either Memorandum based upon information relating to the Placement Agent
furnished to the Company in writing by the Placement Agent expressly for
use therein.
(b) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and
to conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in each Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Registration Rights Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the
Company, enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (y) the availability
of equitable remedies may be limited by equitable principles of general
applicability and (z) any rights to indemnity and contribution may be
limited by federal and state securities laws and public policy
considerations.
(f) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the
Indenture and paid for by the Placement Agent in accordance with the
terms of this Agreement, will (x) be valid and binding obligations of
the Company enforceable in accordance with their terms, except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration, if applicable, and the availability of equitable remedies
may be limited by equitable principles of general applicability and (y)
be entitled to the benefits of the Indenture.
(g) The Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (x) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (y)
rights of acceleration, if applicable, and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(h) The Merger and the execution, delivery and performance of
the Merger Certificate have been duly and validly authorized by the
Company and PageMart, all corporate action necessary to approve the
Merger has been accomplished and no consent, approval, authorization or
order of or qualification with, any government body or agency is
required for the consummation of the Merger, except such as have been
obtained pursuant to the Communications Act of 1934 as amended (the
"Communications Act") and the rules, regulations and policies of the FCC
and except such consents, approvals, authorizations, orders or
qualifications as will be obtained as of the Closing Date (as defined
herein).
(i) Upon consummation of the Refinancing, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture, the Notes, the
Registration Rights Agreement and the Merger Certificate, will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company, or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any of its subsidiaries, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the consummation of the
Merger, the performance by the Company of its obligations under this
Agreement, the Indenture, the Notes, the Registration Rights Agreement
or the Merger Certificate, except such as have been obtained pursuant to
the Communications Act and the rules, regulations and policies of the
FCC, and except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Notes and by Federal and state securities laws with respect to the
Company's obligations under the Registration Rights Agreement and except
such consents, approvals, authorizations, orders or qualifications as
will be obtained as of the Closing Date.
(j) There has not occurred any material adverse change, or any
development that could reasonably be expected to cause a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Preliminary
Memorandum.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that could reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this
Agreement, the Indenture, the Registration Rights Agreement, the Notes,
or the Merger Certificate or to consummate the Merger or the transactions
contemplated by the Final Memorandum.
(l) Each of the Company and its respective subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Preliminary Memorandum, except
to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(m) Simultaneously with or prior to the Closing (as defined
herein), each element of the Refinancing shall have been consummated.
(n) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Company (other than the Placement Agent) has directly, or through any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of any security (as defined in the Securities Act)
which is or will be integrated with the sale of the Notes in a manner
that would require the registration under the Securities Act of the
Notes or (ii) engaged in any form of general solicitation or general
advertising in connection with the offering of the Notes (as those terms
are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(o) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(p) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agent in the manner contemplated
by this Agreement to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(q) None of the Company or any of its Affiliates or any person
acting on its or their behalf (other than the Placement Agent) has
engaged in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes and the Company, and its
Affiliates and any person acting on its or their behalf (other than the
Placement Agent) have complied with the offering restrictions
requirement of Regulation S.
2. Offering. You have advised the Company that you will make an
offering of the Notes purchased by you hereunder on the terms set forth in the
Final Memorandum as soon as practicable after this Agreement is entered into
as in your judgment is advisable.
3. Purchase and Delivery. The Company hereby agrees to sell to
the Placement Agent, and the Placement Agent, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company, the Notes at a
purchase price of $559.224675 per Note plus accrued amortization of original
issue discount, if any, from January 28, 1998 to the date of payment and
delivery.
Payment for the Notes shall be made against delivery of the Notes
at a closing (the "Closing") to be held at the offices of Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on
January 28, 1998, or at such other time on the same or such other date, not
later than February 11, 1998, as shall be designated in writing by you. The
time and date of such payment are herein referred to as the "Closing Date".
Payment for the Notes shall be made by wire transfer to an account specified
by the Company in federal funds or other funds immediately available in New
York City.
Certificates for the Notes shall be in definitive or global form
and registered in such names and in such denominations as you shall request
not less than two full business days prior to the Closing Date. The
certificates evidencing the Notes shall be delivered to you on the Closing
Date with any transfer taxes payable in connection with the transfer of the
Notes to you duly paid, against payment of the purchase price therefor.
4. Conditions to Closing. The obligations of the Placement
Agent under this Agreement to purchase the Notes will be subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and on or prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's or PageMart's securities by any
"nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition, business or results of operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Preliminary Memorandum that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated in
the Final Memorandum.
(b) You shall have received on the Closing Date a certificate
from the Company, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
Each of the officers signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, dated the Closing Date,
to the effect set forth in Exhibit B.
(d) You shall have received on the Closing Date an opinion of
the General Counsel of the Company, dated the Closing Date, to the
effect set forth in Exhibit C.
(e) You shall have received on the Closing Date an opinion of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, special FCC counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit D.
(f) You shall have received on the Closing Date an opinion of
X'Xxxxxx & Xxxxxx, special FCC counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit E.
(g) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Placement Agent, dated the Closing
Date.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Xxxxxx
Xxxxxxxx LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into each Memorandum.
(i) You shall have received on the date hereof the Registration
Rights Agreement effective as of the Closing Date and executed by the
Company.
(j) You shall have received on the date hereof a true and
correct copy of the consent of the lenders under the Company's Revolving
Credit Agreement (as defined in the Final Memorandum) necessary to
consummate the Refinancing and all transactions related thereto, and to
spend the amounts necessary to construct the Company's Narrowband
Personal Communication Services network as described in the Final
Memorandum.
(k) You shall have received on the date hereof duly executed
copies of the Merger Certificate executed by the Company and PageMart,
and, on the Closing Date, the Merger Certificate shall be in full force
and effect.
(l) Each element of the Refinancing will have occurred prior to,
or will occur concurrently with, the Closing.
(m) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
5. Covenants of the Company. In further consideration of the
agreements of the Placement Agent contained in this Agreement, the Company
covenants as follows:
(a) To furnish to you, without charge, during the period
mentioned in paragraph (c) below, as many copies of the Final
Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Notes shall have been sold by the Placement
Agent, any event shall occur or condition exist as a result of which it
is necessary in your judgment to amend or supplement the Final
Memorandum in order to make the statements therein, in light of the
circumstances when such Memorandum is delivered to the Placement Agent,
not misleading, or if, in the opinion of counsel to the Placement Agent
it is necessary to amend or supplement such Memorandum to comply with
applicable law, forthwith to prepare and furnish to the Placement Agent,
at the Company's own expense, either amendments or supplements to such
Memorandum so that the statements in such Memorandum as so amended or
supplemented will not, in light of the circumstances when such
Memorandum is delivered to the Placement Agent, be misleading or so that
such Memorandum, as so amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Placement
Agent shall reasonably request.
(e) Whether or not any sale of Notes to you is consummated, to
pay all expenses incident to the performance of its obligations under
this Agreement, including: (i) the preparation of each Memorandum and
all amendments and supplements thereto, (ii) the preparation, issuance
and delivery of the Notes, (iii) the fees and disbursements of the
Company's counsel and accountants and the Trustee and its counsel, (iv)
the qualification of such Notes under securities or Blue Sky laws in
accordance with the provisions of Section 5(d) hereof, including filing
fees and the fees and disbursements of counsel for the Placement Agent
in connection therewith and in connection with the preparation of any
Blue Sky memoranda, (v) the printing and delivery to the Placement Agent
in quantities as hereinabove stated of copies of each Memorandum and any
amendments or supplements thereto, (vi) all document production charges
and expenses of counsel to the Placement Agent (but not including their
fees for professional services) in connection with the preparation of
this Agreement and (vii) the fees and expenses, if any, incurred in
connection with the admission of the Notes for trading in any
appropriate market system.
(f) Neither the Company, nor any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which would
be integrated with the sale of the Notes in a manner which would require
the registration under the Securities Act of the Notes.
(g) Not to solicit any offer to buy, or offer or sell, the Notes
by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(h) To use its best efforts to permit the Notes to be designated
PORTAL securities in accordance with the rules and regulations adopted
by the National Association of Securities Dealers, Inc. relating to
trading in the PORTAL Market.
(i) None of the Company or its Affiliates or any person acting
on its or their behalf (other than the Placement Agent) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Notes, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Placement Agent)
will comply with the offering restrictions of Regulation S.
(j) To apply the net proceeds from the sale of the Notes
pursuant to this Agreement in the manner described under "Use of
Proceeds" in the Final Memorandum.
(k) The Company agrees, for the sole benefit of the Placement
Agent;
(i) prior to the consummation of the Exchange Offer (as
such term is defined in the Registration Rights Agreement) or the
effectiveness of a Shelf Registration Statement (as such term is
defined in the Registration Rights Agreement) if, in the
reasonable judgment of the Placement Agent, the Placement Agent or
any of its affiliates (as such term is defined in the rules and
regulations under the Securities Act) is required to deliver an
offering memorandum in connection with sales of, or market-making
activities with respect to, the Notes or the Exchange Notes, (A)
to periodically amend or supplement the Final Memorandum so that
the information contained in the Final Memorandum complies with
the requirements of Rule 144A of the Securities Act, (B) to amend
or supplement the Final Memorandum when necessary to reflect any
material changes in the information provided therein so that the
Final Memorandum will not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances existing as of the date the Final Memorandum is so
delivered, not misleading and (C) to provide the Placement Agent
with copies of each such amended or supplemental Final Memorandum,
as the Placement Agent may reasonably request;
(ii) following the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement and for so long as
the Notes or the Exchange Notes are outstanding if, in the
reasonable judgement of the Placement Agent, the Placement Agent
or any of its affiliates (as such term is defined in the rules and
regulations under the Securities Act) is required to deliver a
prospectus in connection with sales of, or market-making activities
with respect to, such securities, (A) to periodically amend the
applicable registration statement so that the information
contained therein complies with the requirements of Section 10(a)
of the Securities Act, (B) if requested by the Placement Agent,
within 45 days following the end of the Company's most recent
fiscal quarter, file a supplement to the prospectus (which
supplement may be incorporated by reference) included in the
applicable registration statement which sets forth the financial
results of the Company for the previous quarter, (C) to amend the
applicable registration statement or supplement the related
prospectus or the documents incorporated therein when necessary to
reflect any material changes in the information provided therein
so that the registration statement and the prospectus will not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in light of the circumstances existing as of the date the
prospectus is so delivered, not misleading and (D) to provide the
Placement Agent with copies of each such amendment or supplement
as the Placement Agent may reasonably request;
(iii) notwithstanding clauses (i) and (ii) above, (A) prior
to amending the Final Memorandum or to filing any post-effective
amendment to any registration statement or to supplementing any
related prospectus, to furnish to the Placement Agent and its
counsel, copies of all such documents proposed to be amended,
filed or supplemented, and (B) it will not issue any amendment to
the Final Memorandum, any post-effective amendment to a
registration statement or any supplement to a prospectus to which
the Placement Agent or its counsel shall reasonably object;
(iv) it shall notify the Placement Agent and its counsel
and (if requested by any such person) confirm such advice in
writing, (A) when any amendment to the Final Memorandum has been
issued, when any prospectus supplement or amendment or
post-effective amendment has been filed, and, with respect to any
post-effective amendment, when the same has become effective, (B)
of any request by the Commission for any post-effective amendment
or supplement to a registration statement, any supplement or
amendment to a prospectus or for additional information, (C) the
issuance by the Commission of any stop order suspending the
effectiveness of a registration statement or the initiation of any
proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Notes or the Exchange Notes for sale in any
jurisdiction or the initiation or threatening of any proceedings
for such purpose and (E) of the happening of any event which makes
any statement made in the Final Memorandum, a registration
statement, a prospectus or any amendment or supplement thereto
untrue or which requires the making of any change in the Final
Memorandum, a registration statement, a prospectus or any
amendment or supplement thereto, in order to make the statements
therein not misleading;
(v) it consents to the use of the Final Memorandum and any
prospectus referred to in this paragraph (k) or any amendment or
supplement thereto, by the Placement Agent in connection with the
offering and sale of the Notes or Exchange Notes, as the case may
be;
(vi) it will comply with the provisions of this paragraph
(k) at its own expense;
(vii) and hereby expressly acknowledges that the
indemnification and contribution provisions of Section 7 of the
Purchase Agreement shall be specifically applicable and relate to
each offering memorandum, registration statement, prospectus,
amendment or supplement referred to in this paragraph (k).
6. Offering of the Notes; Restrictions on Transfer. (a) The
Placement Agent represents and warrants that it is a qualified institutional
buyer as defined in Rule 144A under the Securities Act (a "QIB"). The
Placement Agent agrees with the Company that (x) it will not solicit offers
for, or offer or sell, the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act and (y) it will solicit offers
for such Notes only from, and will offer such Notes only to, persons that it
reasonably believes to be (A) in the case of offers inside the United States,
(i) QIBs or (ii) other institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) ("institutional
accredited investors") that, prior to their purchase of the Notes, deliver to
the Placement Agent a letter containing the representations and agreements set
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)) that, in each case, in
purchasing such Notes are deemed to have represented and agreed as provided in
the Final Memorandum under the caption "Transfer Restrictions."
(b) The Placement Agent represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in
any jurisdiction by the Company that would permit a public offering of
the Notes, or possession or distribution of either Memorandum or any
other offering or publicity material relating to the Notes, in any
country or jurisdiction where action for that purpose is required;
(ii) the Placement Agent will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Notes or has in its possession or distributes either Memorandum
or any such other material, in all cases at its own expense;
(iii) the Notes have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(iv) the Placement Agent has offered the Notes and will offer and
sell the Notes (A) as part of their distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the
Offering and the Closing Date, only in accordance with Rule 903 of
Regulation S. Accordingly, neither the Placement Agent, its Affiliates
nor any persons acting on its or their behalf have engaged or will
engage in any directed selling efforts (within the meaning of Regulation
S) with respect to the Notes, and the Placement Agent, its Affiliates
and any such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) the Placement Agent has (A) not offered or sold and will not
offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995 (the "Regulations"); (B) complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom; and (C) only issued
or passed on and will only issue or pass on to any person in the United
Kingdom any document received by it in connection with the issue of the
Notes if that person is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully
be issued or passed on;
(vi) the Placement Agent understands that the Notes have not been
and will not be registered under the Securities and Exchange Law of
Japan, and represents that it has not offered or sold, and agrees that
it will not offer or sell, any Notes, directly or indirectly in Japan or
to any resident of Japan except (A) pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan and
(B) in compliance with any other applicable requirements of Japanese
law; and
(vii) the Placement Agent agrees that, at or prior to confirmation
of sales of the Notes, it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or
notice substantially to the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at
any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act."
Terms used in this Section 6 and not otherwise defined herein have the
meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Placement Agent, and each person, if any, who
controls the Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, the Placement Agent, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Placement Agent or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented, if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Placement Agent furnished to the Company in
writing by you expressly for use therein, provided, however, that the
foregoing indemnity agreement with respect to any Memorandum sent or given to
holders of Notes in preliminary form shall not inure to the benefit of the
Placement Agent from whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes, if a copy of the Memorandum in
final form (as then amended or supplemented) was not sent or given by or on
behalf of such Placement Agent to such person at or prior to the time such
person purchased the Notes, and if the Memorandum in final form (as amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 5(a) hereof.
(b) The Placement Agent agrees to indemnify and hold harmless the
Company, its directors, officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to the Placement Agent, but only with reference to
information relating to the Placement Agent furnished to the Company in
writing by you expressly for use in either Memorandum or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel, in the opinion
of the indemnified party's counsel, would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx
& Co. Incorporated, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Placement Agent, on
the other hand, from the offering of such Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Placement Agent on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Placement
Agent on the other hand in connection with the offering of such Notes shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discounts and commissions received by the Placement Agent in respect
thereof bear to the aggregate offering price of such Notes. The relative
fault of the Company on the one hand and of the Placement Agent on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Placement Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Placement Agent agree that it would not
be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Placement Agent shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Notes resold by it in the initial placement of such
Notes were offered to investors exceeds the amount of any damages that the
Placement Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The indemnity and contribution
provisions contained in this Section 7 and the representations and warranties
of the Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agent or any person
controlling the Placement Agent or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Notes. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New
York shall have been declared by either Federal or New York State authorities
or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) such event individually or together
with any other such event makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated in the Final Memorandum.
9. Miscellaneous. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agent
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Placement Agent for all
out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by the Placement Agent in connection with this Agreement
or the offering contemplated hereunder.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
PAGEMART WIRELESS, INC.
By /s/ G. Xxxx Xxxxx
---------------------------------
Name: G. Xxxx Xxxxx
Title: Vice President, Finance
and Chief Financial Officer
Agreed, January 22, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Principal
EXHIBIT A
Form of Registration Rights Agreement
EXHIBIT B
Form of Opinion of Xxxxx Xxxx & Xxxxxxxx
Pursuant to Section 4(c) of the Placement Agreement, Xxxxx Xxxx &
Xxxxxxxx, counsel for the Company, shall furnish an opinion dated the
Closing Date to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has the corporate power and authority to own
its property and to conduct its business as described in the Final
Memorandum;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation
and has the corporate power and authority to own its property and
to conduct its business as described in the Final Memorandum;
(iii) the Placement Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (y) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (z) any rights to
indemnity and contribution may be limited by federal and state
securities laws and public policy considerations;
(v) the Indenture pursuant to which the Notes are to be
issued has been duly authorized, executed and delivered by, and,
assuming due authorization and delivery by the Trustee, is a valid
and binding agreement of, the Company, enforceable in accordance
with its terms, except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and
(y) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of
general applicability;
(vi) the Notes have been duly authorized and, when executed,
authenticated and delivered to and paid for by the Placement Agent
in accordance with the terms of the Placement Agreement and
assuming due authentication by the Trustee, will be (x) valid and
binding obligations of the Company enforceable in accordance with
their terms, except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and
(B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of
general applicability and (y) entitled to the benefits of the
Indenture;
(vii) the Merger and the Merger Certificate have been duly
authorized by the Company and PageMart, all corporate action
necessary to approve the Merger has been accomplished and no
consent, approval, authorization or order of or qualification
with, any governmental body or agency is required for the
consummation of the Merger, except such as may have been obtained
pursuant to the Communications Act and the rules, regulations and
policies of the FCC;
(viii) to the best of such counsel's knowledge, the
execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Placement Agreement, the
Indenture, the Notes, the Registration Rights Agreement and the
Merger Certificate, and the issuance, sale and delivery of the
Notes, will not contravene (x) any provision of applicable law or
(y) the certificate of incorporation or by-laws of the Company,
and no consent, approval, authorization or order of or
qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under the
Placement Agreement, the Indenture, the Notes, the Registration
Rights Agreement and the Merger Certificate or the issuance, sale
and delivery of the Notes, except such as may be required by (A)
the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes, (B) the
Communications Act, and the rules, regulations and policies of the
FCC, in connection with the consummation of the Merger or (C) the
public utilities laws of the various states and the rules,
regulations and policies of the state public utilities regulatory
authorities thereunder, and except such that would not have a
material adverse effect on the Company and its subsidiaries taken
as a whole;
(ix) such counsel is not aware of any legal or governmental
proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject other than
proceedings fairly summarized in all material respects in the
Final Memorandum or proceedings which such counsel believes are
not likely to have a material adverse effect on the power or
ability of the Company to perform its obligations under the
Placement Agreement, the Indenture, the Notes, the Merger
Certificate and the Registration Rights Agreement or the issuance,
sale and delivery of the Notes or to consummate the Merger or the
transactions contemplated by the Final Memorandum;
(x) the Company is not an "investment company", as defined
in the Investment Company Act of 1940, as amended;
(xi) the statements in (or incorporated by reference in)
the Final Memorandum under the captions "Description of the
Notes", "Private Placement" and "Transfer Restrictions", insofar
as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xii) the statements in the Final Memorandum under the
caption "Certain United States Federal Income Tax Considerations"
are accurate and fairly summarize the matters referred to therein;
(xiii) such counsel (i) is of the opinion that each document
incorporated by reference in the Final Memorandum (except for
financial statements and schedules and other financial and
statistical data included therein as to which such counsel need
not express any opinion), complied as to form when filed with the
Commission in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and (ii) has no
reason to believe that (except for financial statements and
schedules and other financial and statistical data as to which
such counsel need not express any belief) the Final Memorandum
when issued contained, or as of the date such opinion is delivered
contains, any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and
(xiv) based upon the representations, warranties and
agreements of the Company in Sections 1(n), 1(q), 5(f), 5(g) and
5(i) of the Placement Agreement and of the Placement Agent in
Section 6 of the Placement Agreement, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Placement Agent under the Placement Agreement or in connection
with the initial resale of such Notes by the Placement Agent in
accordance with Section 6 of the Placement Agreement to register
the Notes under the Securities Act of 1933, it being understood
that no opinion is expressed as to any subsequent resale of any
Notes.
With respect to paragraph (xiii) above, counsel may state
that their opinion and belief are based upon their participation in the
preparation of the Final Memorandum (and any amendments or supplements
thereto) and review and discussion of the contents thereof and review of
the documents incorporated by reference therein, but are without
independent check or verification except with respect to paragraphs (xi)
and (xii) above. Such counsel need not express any opinion with respect
to matters governed by or related to (x) the Communications Act or the
rules, regulations or policies of the FCC or (y) the public utilities
laws of the various states or the rules, regulations or policies of the
state public utilities regulatory authorities thereunder.
EXHIBIT C
Form of Opinion of the General Counsel of the Company
Pursuant to Section 4(d) of the Placement Agreement, the General
Counsel of the Company shall furnish an opinion dated the Closing Date
to the effect that:
the statements "Item 3 - Legal Proceedings" of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1996, in "Item 1 - Legal Proceedings" of the Company's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1997, June
30, 1997 and September 30, 1997 and in "Item 5 - Other Events" of
the Company's Current Report on Form 8-K filed with the Commission
on November 3, 1997 included or incorporated by reference in the
Final Memorandum, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein.
EXHIBIT D
Form of Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
Pursuant to Section 4(e) of the Placement Agreement, Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, special FCC counsel for the Company, shall
furnish an opinion dated the Closing Date to the effect that:
(i) the statements in the Final Memorandum under the
captions "Risk Factors--Potential for Change in Regulatory
Environment" and "Business--Government Regulation" (except for any
and all statements regarding (a) the Company's or any of its
subsidiaries' FCC licenses, including, but not limited to,
statements regarding compliance by any such entity with any
requirements or conditions of said FCC licenses; and (b)
management's awareness of or belief regarding certain matters),
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, are
accurate in all material respects and fairly summarize the matters
referred to therein; and
(ii) no consent, approval, order or authorization of, or
filing with, the FCC on the part of the Company or its
subsidiaries is required in connection with the consummation of
the Merger, except such as may have been obtained pursuant to the
Communications Act and the rules, regulations and policies of the
FCC, and except for routine notification of the FCC subsequent to
the consummation of the Merger.
EXHIBIT E
Form of Opinion of X'Xxxxxx & Xxxxxx
Pursuant to Section 4(f) of the Placement Agreement, X'Xxxxxx &
Xxxxxx, special FCC counsel for the Company, shall furnish an opinion
dated the Closing Date to the effect that:
(i) the Company and its subsidiaries have all the FCC
authorizations, consents and approvals (collectively, "FCC
Licenses") that are required to carry on the Company's and its
subsidiaries' businesses as now conducted. The FCC Licenses have
been duly and validly issued and are in full force and effect. To
the best of such counsel's knowledge, the Company, and its
subsidiaries are not in violation of any of the terms and
conditions of the FCC Licenses;
(ii) there is no outstanding adverse judgment, decree, or
order that has been issued by the FCC against the Company or its
subsidiaries or, to the best of such counsel's knowledge, any
action, proceeding, or investigation pending or threatened by the
FCC against the Company or its subsidiaries which would materially
and adversely affect the Merger or the operations of the Company
or its subsidiaries. To the best of such counsel's knowledge, the
Company and its subsidiaries are in compliance with the
Communications Act and the rules, regulations and policies of the
FCC;
(iii) no consent, approval, order or authorization of, or
filing with, the FCC on the part of the Company or its
subsidiaries with regard to any of the FCC Licenses and FCC
applications, other than pro forma transfer of control
applications which have been granted by the FCC, is required in
connection with the issuance, sale and delivery of the Notes
pursuant to this Agreement;
(iv) the Company and its subsidiaries will be in compliance
with Section 310(a) and Section 310(b) of the Communications Act
and the rules, regulations, and policies of the FCC thereunder;
(v) the consummation of the Merger will not result in a
violation of or be in conflict with, and the Closing will not
result in a violation of, or be in conflict with, any terms of the
Communications Act and the rules, regulations and policies of the
FCC thereunder; and
(vi) the statements contained in the Offering Memorandum
under the captions "Risk Factors--Potential for Changes in
Regulatory Environment" and "Business--Government Regulation",
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, are
accurate in all material respects and fairly summarize the matters
referred to therein.
